Decision

Acceptance Decision

Updated 27 October 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1314(2023)

23 May 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

GMB

and

Don-Bur (Bodies & Trailers) Ltd

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 29 March 2023 that it should be recognised for collective bargaining by Don-Bur (Bodies & Trailers) Ltd (the Employer) for a bargaining unit comprising “All hourly paid direct and indirect employees at Mossfield Road, Stoke-on-Trent ST3 5BW”. The CAC gave both parties notice of receipt of the application on 30 March 2023. The Employer submitted a response to the CAC dated 5 April 2023 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted of Mrs Lisa Gettins, Chair of the Panel and, as Members, Mr David Cadger and Mr Ian Hanson. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 14 April 2023. The acceptance period was then extended to 5 May 2023 in order to allow time to conduct a membership check and to allow time for the parties to comment thereon before the Panel arrived at a decision. Finally, time was extended to 19 May 2023 to allow for the Panel to finalise its decision. The final extension ends the acceptance period on 23 May 2023.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore, should be accepted.

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it made its formal request for recognition on 14 March 2023 and that, in an email received by the Union on 24 March 2023, the Employer made it clear that it would not engage in voluntary recognition.

6) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered “No”. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7). The Union stated that the total number of workers employed by the Employer was approximately 350. The Union stated that approximately 270 of these workers were in the proposed bargaining unit of whom 120 were Union members. Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “No”. When called upon to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that a petition of 206 signatures had been collected and that it would be made available to the CAC in confidence upon request.

8). The Union said it had selected the proposed bargaining unit as it believed that a bargaining unit made up of all hourly paid employees below management level made industrial common sense and was compatible with effective management. When asked whether the bargaining unit had been agreed with the Employer the Union answered “No”.

9). Finally, the Union stated that there was no existing recognition agreement which covered any of the workers in the bargaining unit, it confirmed that it held a current certificate of independence and it confirmed that it had copied the application and supporting documents to the Employer on 29 March 2023.

4. Summary of the Employer’s response to the Union’s application

10) In its response to the Union’s application the Employer stated that it received the Union’s written request for recognition on 14 March 2023 and it replied by way of an email dated 24 March 2023 rejecting the request. A copy of the email was attached to its response form. The Employer stated that it had received a copy of the application form from the Union on 30 March 2023.

11) The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. It said it did not agree it, stating that the definition of the proposed bargaining unit was unclear and was not understood. The terms “direct” and “indirect” have not been defined and it was not therefore possible to understand who was within the proposed bargaining unit. Further, the proposed bargaining unit was not compatible with effective management.

12) When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered “No”.

13) The Employer stated that it employed a total of 457 permanent workers. Asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered “No” adding “There are 300 permanent hourly paid workers at Mossfield (including Supervisors). The meaning of the term “indirect” is unclear in the proposed bargaining unit definition. We believe that the union has included agency workers in its figure as to the number of workers. The agency workers are not Don-Bur’s workers. We further believe that the asserted figures as to union membership and the alleged signatories of the petition are similarly inflated with agency workers.”

14) The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15) Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated “Disagree — we do not know the true membership of the union but believe that the union has included agency workers, members that have since left the union and former employees. We invite the CAC to undertake a confidential membership check, for which purpose we will confidentially provide a list of the hourly paid employees of Don-Bur at Mossfield.” When asked to give reasons if it did not believe that a majority of workers in the bargaining unit were likely to support recognition the Employer said that it believed, consistent with the Union’s claims as to it membership, that agency workers and former employee members of the Union may have been included in the petition. The Employer had had sight of the Union’s petition sheet which was blank except for columns for employees to state their details. There was no GMB heading and no statement as to what the petition was for. The Employer had been informed by employees that in seeking signatures for the petition, Union representatives had described it as being for “Freedom of Speech” or a “Vote of no Confidence”. The Employer did not therefore believe that those who signed the petition did so in the belief that they were supporting recognition of the Union or that they even understood what they had put their name to. This was compounded by the fact that the Union was campaigning for recognition on the basis of Health and Safety issues, despite recognition not extending to those issues. The Employer had also received numerous letters from employees (in excess of 40), copies of which can be provided confidentially to the CAC (or more generally in a redacted form), opposing recognition of the Union and/or raising concerns about the Union’s behaviour. These include complaints about the Union’s tactics including the way in which it has been using social media.

16) Finally, the Employer answered “N/A” when asked if it was aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit or whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit.

5. Union’s comments on the Employer’s response

17) The Employer’s response was copied to the Union and clarification sought as to the terms “direct” and “indirect” used in its definition of the proposed bargaining unit. In an email dated 17 April 2023 the Union stated that describing employees as direct and indirect employees was a description used widely in manufacturing to describe operatives that added value to a product, i.e., Welders, Fabricators, Machine operatives etc. These were Direct Employees. Indirect employees were those supporting the production process, either within the operations function such as Material Handlers, Forklift Truck Drivers etc. or within other functions such as Quality Assurance, Tool Room, Maintenance, and other support functions with hourly paid employees. All those within the proposed bargaining unit were Direct or Indirect hourly paid employees of Don-bur and not agency workers or salaried employees.

6. The check of membership and support

18) To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit are likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed independent checks of the level of union membership in the proposed bargaining unit and the number of workers in that unit who had signed the Union’s petition in support of recognition. It was agreed with the parties that the Employer would supply to the Case Manager a list of the full names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of the full names and dates of birth of the paid-up union members within that unit and a copy of the petition. The information from the Employer and Union was received by the CAC on 24 April 2023. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and the petition would not be copied to the other party and that agreement was confirmed in a letter from the Case Manager to both parties dated 19 April 2023. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer showed that there were 303 workers in the proposed bargaining unit. The list of members supplied by the Union contained 113 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 105, a membership level of 34.65%.

20) The Union also provided a petition in both a paper and e-version. The paper petition took the form of a 32-page pdf although signatures were only present on 19 of these pages. The petition carried the following proposition on six of these nineteen pages of the 32-page pdf bearing signatures, the rest being continuation sheets with columns likewise headed: Name (in block Capitals); Signature; Date of birth; Postcode and Date:

“PETITION IN SUPPORT OF RECOGNITION

Don-bur Bodies & Trailers Ltd

Mossfield Road,

Stoke-On-Trent

ST3 5BW

GMB trade union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers in the “bargaining unit” support our application. If you do support us, please sign this petition.

I support recognition of GMB trade union as entitled to conduct collective bargaining on pay, hours and holidays on behalf of all hourly paid employees.”

The signatures on the paper petition were dated between 14 February 2023 and 20 April 2023.

21) The Union also provided the results of an e-petition which took the form of a spreadsheet with columns headed: ID; Start time; Completion time; Email Name; First Name; Surname; Date of Birth (DD/MM/YY) and Postcode. The entries on the spreadsheet were dated between 28 February 2023 and 23 April 2023. Where a worker had signed both formats of the petition, only one of the signatures was included in the figure for the number of names in common with the Employer’s list.

22) The Case Manager’s report showed that the petition was signed by 132 workers in the proposed bargaining unit, a figure which represents 43.569% of the bargaining unit. Of those 132 signatories 94 were members of the Union (31.02% of the proposed bargaining unit) and 38 were non-members (12.54% of the proposed bargaining unit).

23) A report of the result of the membership and support check was circulated to the Panel and the parties on 25 April 2023 and the parties were invited to comment on the results by the close of business on 2 May 2023.

7. Parties’ comments on the result of the membership and support check

24) Asked for its comments on the Case Manager’s check the Union submitted a four-page letter dated 3 May 2023 in which it detailed its recent interactions with the Employer, set out the text of its original formal request for recognition as well as the Employer’s response and also set out a number of allegations and counter-allegations as to events that had taken place outside of the Employer’s premises. On the actual report itself the Union said that it believed that the Employer had included hourly paid employees from other sites in Stoke who were on its central payroll but who were not employed at Mossfield Road and therefore not within the proposed bargaining unit. The Union was of the view that this had been done deliberately to dilute the percentage of hourly paid employees that had signed the recognition petition. Union members had consistently suggested that there were between 240 and 270 hourly paid employees at Mossfield Road, and the Union had no reason to doubt them.

25) In comments received on 3 May 2023 the Employer noted that, despite the petition running for nearly two months, less than half of the workers in the proposed bargaining unit had signed it. The Employer expressed concern over the validity of the numbers in the petition given the level of duplication of names. The Employer also expressed concern about the manner in which the Union had asked people to sign the petition and whether signatories truly understood that their signature related to supporting recognition.

26) The Employer also sent redacted copies of letters which it alleged had been sent unsolicited and received by its employees.

27) The Employer believed that some members had recently resigned from the Union and queried whether they had still been included in the Union’s membership numbers especially given that only 94 of the 105 members had signed the Union’s petition. The Employer then set out extracts from letters it had received in which the author had stated that they had ceased to be in membership of the Union.

28) The Employer stated that the number of letters of complaint from employees in the bargaining unit about the Union were growing with 50 such letters having now being received. The nature of these complaints were largely set out in the Employer Response Form and so the Employer felt no need to repeat them again.

29) The Employer also explained that an Employee Representation Group (ERG) had been set up, with employees having now been appointed and this had been received with a great deal of positivity by the workforce. The Employer believed that some employees who might otherwise have been minded to vote in favour of recognition would now be reassured by the introduction of the ERG and would share the Employer’s view that trade union recognition was unnecessary.

8. Considerations

30) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule. The Panel is also satisfied that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(2) applies if:

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union … that the employer does not accept the request (without indicating a willingness to negotiate).

The first period is defined in paragraph 10(6) as “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”. In this case the Union made its formal request for recognition on 14 March 2023, and it was refused by the Employer by way of an email dated 24 March 2023.

31) The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule.

32) The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

Paragraph 36(1)(a)

33) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the Union constitute at least 10% of the workers in the proposed bargaining unit. The membership check conducted by the Case Manager showed that of 34.65%. of the workers in the proposed bargaining unit were members of the Union. As previously stated, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel has therefore decided that members of the Union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

Paragraph 36(1)(b)

34) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

35) In this case the check conducted by the Case Manager showed that a total of 132 workers, i.e., 43.56% of the workers in the proposed bargaining unit, had signed the Union’s petition in support of recognition. That is the number of unique signatures having excluded the number of duplicate signatures on the e-petition as well as the number of workers that had signed both paper and e-version. Thirty-eight of the petition signatories were not members of the Union and this accounts for 12.54% of the total number of workers in the proposed bargaining unit.

36) The membership checks also established that 105 of the workers in the proposed bargaining unit were members of the Union, representing 34.65%. of the total. Whilst the Employer has stated some members had expressed in writing in letters to the Employer that they were no longer in membership, this information had not been verified as part of the Case Manager’s check.

37) The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. Whilst the Employer has referred to workers having notified it that are no longer in membership, no evidence has been received to cast any doubt as to the veracity of the information provided by the Union.

38) At this stage of the statutory process we do not have to decide whether a majority of workers in the bargaining unit would actually support recognition for collective bargaining but, rather, determine whether on the evidence before us, that it is likely a majority would support recognition. Given the density of Union membership within the proposed bargaining unit and the proportion of non-members who had signed the Union’s petition in support of recognition, the Union can point to 47.19% of the workers in the bargaining unit having expressed support either by way of membership or by signing the petition. We believe that is not beyond the balance of probabilities that the Union would garner further support from those workers who have yet to express a view. This is more so in a challenging environment whereby workers may well be reluctant to express a view on recognition outside of the privacy of a secret ballot.

39) Having carefully considered the evidence before it, the Panel is satisfied that it is likely that a majority of the workers would favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit and this test is satisfied.

9. Decision

40) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Lisa Gettins, Panel Chair

Mr David Cadger

Mr Ian Hanson

23 May 2023